"The government will not tolerate statements that create dissonance in our society and disrespect for others."
Jean Augustine, former Minister of State for Multiculturalism

Friday, July 22, 2005

Judging SSM

A Spanish judge who has refused to marry a lesbian couple is taking her challenge to Spain's new same-sex marriage law to the Spanish Constitutional Court:

Judge Laura Alabau of the city of Denia in southwestern Spain is challenging the constitutionality of the new law, saying it violates article 32 of the country's Constitution, which says, "Men and women have the right to contract marriage with full juridical equality."

This phrase was identical to a statute in the Civil Code, which after the recent changes now reads, "Marriage shall have the same requirements and effects whether both parties are of the same or of the opposite sex."

Alabau is the first judge in Spain to refuse to preside at gay marriages. She has based her right to refuse on article 163 of the Spanish Constitution, which allows judges to file constitutional challenges.

The leading opposition party in Spain, the Partido Popular, is also considering a challenge to the new law's constitutionality.

We've heard a lot about marriage commissioners resigning or being forced out of office because they do not want to perform same-sex marriages.

To date, no Canadian judge has refused to preside over such a marriage, but no doubt one will. Then what happens?

Federally appointed judges can only be removed by both houses of Parliament, following a recommendation to the Attorney General of Canada by the Canadian Judicial Council. Parliament has never removed a federally appointed judge. Would it do so to uphold same-sex marriage?

Would a provincial legislature or cabinet do the same to a provincial court judge who declined to marry a homosexual couple?

Not all judges are cut from the same liberal-left activist cloth, despite the persistent conservative stereotype that has emerged. But they'll all defend their judicial independence and prerogatives to the death.